6.  The applicant was born in 1952 and lives in Blaichach, Germany.
7.  Since July 1990 the applicant worked as a cleaner in a home for the care of mentally disabled persons.
8.  On 11 August 1994 the applicant was arrested on suspicion of having sexually abused Ms U., a mentally disabled resident of the said home.
9.  On 14 February 1995 the Munich Public Prosecutor's Office charged the applicant with having attempted to sexually abuse Ms U. twice, once on an unspecified date at the end of 1993 or the beginning of 1994 (first charge) and a second time on 12 July 1994 (second charge).
10.  On 29 February 1996 the Munich Regional Court II convicted the applicant on two charges of sexual abuse of a person unfit to defend herself and sentenced him to a cumulative sentence of three years' imprisonment (one year for the first charge and two years and six months for the second one).
11.  On 5 September 1996, following the applicant's appeal on points of law, the Federal Court of Justice quashed the Regional Court's judgment and remitted the case to a different chamber of the Munich Regional Court. The Federal Court of Justice found that the Regional Court, in dismissing the defence's motion to obtain another report of a psychiatric expert, had made a procedural mistake. In view of the fact that witness U. had abused alcohol and tablets at a period in time prior to the offences, it was necessary to have her examined by a medical expert in order to verify whether she suffered from a mental illness affecting her ability to give correct evidence (Aussagetüchtigkeit). In these circumstances, it was not sufficient, as was done by the Regional Court, to have the witness's credibility examined by a psychological expert.
12.  During an oral hearing on 15 December 1999, the sixth hearing in the case, the Munich Regional Court II heard further witnesses. It indicated to the parties that the offences in question could be qualified differently in law as Ms U. had not proved unable to defend herself. Following a short interruption of the hearing, the Regional Court discontinued the proceedings concerning the first charge preliminarily according to section 154 § 2 of the Code of Criminal Procedure (see paragraph 26 below) upon a motion by the Public Prosecutor's Office. The minutes of the hearing do not contain any reasons given either by the Public Prosecutor's Office or by the Regional Court for proceeding in this manner. It had not been possible throughout the proceedings to establish the exact date on which the offence underlying the first charge had been committed.
13.  On 17 December 1999 the Munich Regional Court II convicted the applicant in respect of the remaining second charge of sexual abuse and of bodily injury and sentenced him to two years' imprisonment suspended on probation. The Regional Court based its judgment mainly on the evidence given by Ms U., who was the only eye-witness to the alleged crime. Relying on reports given by both a psychological and a psychiatric expert, the court noted that due to her slight mental disability, Ms U.'s ability to give correct evidence was considerably restricted. Nevertheless, it was convinced that Ms U.'s statements were correct. She had not reported the offence on her own motion, but had confessed it to her partner on the same day when the latter had noticed that she felt depressed. Her partner had then convinced her some days later to inform the management of the home of the incident. Numerous other signs, such as the fact that U. had not tried unnecessarily to incriminate the applicant and had no other motives to accuse him demonstrated that the witness was credible. Moreover, two further female witnesses had confirmed that the applicant had harassed them.
14.  In the judgment, no reasons were given for discontinuing the proceedings in respect of the first charge.
15.  On 20 December 1999 the applicant, represented by counsel, lodged an appeal on points of law with the Federal Court of Justice, which he reasoned on 13 March 2000. He complained, inter alia, that there was a procedural error as no reasons for discontinuing the proceedings in respect of the first charge emerged either from the Public Prosecutor's request to do so or from the Regional Court's decision to partly discontinue the proceedings or from its judgment. However, the Regional Court had not found witness U. to be credible in this respect, which was documented by the fact that it had decided to discontinue the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure. The reasons for discontinuing the proceedings could be essential for the evaluation of Ms U.'s credibility as both charges concerned similar offences and were primarily based on Ms U.'s assertions. If the Regional Court did not follow Ms U.'s testimony with respect to the first charge, it would have been necessary to explain why that court found the same witness's testimony to be credible with respect to the second charge.
16.  On 18 April 2000 the General Public Prosecutor requested the court to dismiss the applicant's appeal on points of law as ill-founded. He argued in particular that no reasons had to be given for partly discontinuing the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure.
17.  In his submissions in reply dated 9 May 2000, the applicant agreed that section 154 § 2 of the Code of Criminal Procedure did not prescribe that reasons had to be given for the discontinuance of the proceedings. However, failure to do so nevertheless rendered the evaluation of evidence defective in the circumstances of the present case.
18.  On 30 May 2000 the Federal Court of Justice rejected the applicant's appeal on points of law. In respect of the said procedural error complained of, it dismissed his appeal on points of law as inadmissible, finding that the applicant had not sufficiently set out the facts which were relevant for his complaint as required by section 344 § 2 of the Code of Criminal Procedure (see paragraph 26 below).
19.  The court agreed with the applicant's submission that
“in cases in which the charges for two offences were based on the statement of only one witness and the proceedings were discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure in respect of one of these offences, the reasons to do so can have evidential value for the decisive question of the credibility of the sole witness for the prosecution; if no grounds for discontinuing the proceedings are given, there is a lack of reasoning (Erörterungsmangel) (see Federal Court of Justice, Strafverteidiger (StV) 1998, pp. 580, 582).”
20.  However, what had been discussed in the hearing before the Regional Court discontinued the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure could not be known by having regard to the text of the judgment alone, as there was no duty to mention the discontinuance of the proceedings pursuant to that section or the reasons therefor in the judgment. It was true that there were judgments in which courts had set out in detail the reasons for partly discontinuing the proceedings and the influence of that decision on the evaluation of evidence, but this was only done if the court saw reasons to do so.
21.  In the present case, the Federal Court of Justice was unable to ascertain on the basis of the applicant's reasoning in his appeal alone whether there had been a procedural error assuming that the facts submitted by him proved to be true (the court referred to its previous decisions published in the Neue Juristische Wochenschrift (NJW) 1995, p. 2047 and StV 1996, p. 530 in this respect).
22.  According to the Federal Court of Justice,
“what is missing is a statement as to which reasons, if any, for discontinuing the proceedings were orally discussed during the court's hearing, because the failure to give reasons for the discontinuance could only constitute a procedural error if these reasons could have had an influence on the outcome of the judgment, such as doubts about the credibility of the statements of the only prosecution witness.”
23.  The Federal Court of Justice noted that as a rule, proceedings were not discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure without any comments, despite the fact that there was no duty to record such statements in the minutes. If, in exceptional circumstances, no comments were made, the appellant was at least obliged expressly to state that the court had not given any other grounds, such as a limitation of the offences at issue in the proceedings for reasons of efficiency, which were irrelevant for the evaluation of evidence.
24.  On 7 September 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his rights to be heard and to a fair trial were violated as in its decision the Federal Court of Justice had applied new admissibility criteria which he could not have foreseen. According to the applicant, the Federal Court of Justice, in its previous case-law, had demanded an account of the oral statements during the hearing only if the minutes disclosed that there had been such statements at all. Now on the contrary, that same court asked for an account of statements which (might) have been made in the course of the hearing and which were not included in the record.
25.  On 15 October 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant's constitutional complaint. The decision was served on the applicant's counsel on 19 October 2000.